The Battle to Save the Constitution, limited government, federalism, and liberty

Affirmative Action vs. Equal Protection

A few minutes into yesterday’s oral argument in Fisher v. University of Texas — a case involving affirmative action — Justice Breyer impatiently blurted out “I want to know whether you [Fisher’s lawyer] are asking us to overrule Grutter,” referring to Grutter v. Bollinger, a 2003 decision which upheld University of Michigan Law School’s race-conscious admission program.

Heading into yesterday’s argument, Breyer, Sotomayor, the media, and all of the nation’s professional diversity mongers were freaking out about the possibility that the Court might overrule Grutter, which has has attained a Roe-like status as a sacred cow. Unfortunately, Fisher’s lawyer played it safe, reassuring the Court’s liberals that they didn’t have to overrule Grutter.

But the truth is that Grutter — which holds that “diversity” is a “compelling state interest” that trumps Equal Protection — is a travesty or, as our own John Yoo recently wrote, a “blemish” on our constitutional law. The Equal Protection Clause provides “no State shall deny to any person within its jurisdiction the equal protection of the laws.” If the framers of that amendment wanted to make an exception for “diversity” they could have found the words to do so.

For my detailed analysis of the Supreme Court argument, and why Grutter must go, see my piece on NRO’s Bench Memos.

My Latest Book

A Less Perfect Union: The Case For States’ Rights

The Constitution's stated purpose is to create "a more perfect Union." But what if our union has become too perfect? What if our national government has become too powerful? What if our states are losing the very powers and freedoms that made our country what it is?

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The Naked Constitution, by Adam Freedman

At a time when our liberties are under attack by politicians and judges who treat the Constitution as a decorative prop, Adam Freedman delivers a much needed counterattack. In The Naked Constitution, Freedman demolishes the bogus theories taught at elite law schools and explains how we can return to the Founders’ principles of individual liberty and limited government.